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U.S. Federal Income Tax

Subjugation by taxation

A LEVY Requires Judicial Process

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        A LEVY requires judicial process because:
No person shall be deprived of property without due process of law. 

U.S. Constitution
Bill of Rights, Article 5.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

        No person's property is to be taken without "due process of law".  In short, that means no property is to be taken until after the property owner has had his or her day in court.  No day in court, NO DUE PROCESS.  The taking of private property without court order is THEFT.  It is also a violation of Unalienable Property Rights protected by the Constitution.

        How do I know this?  I have researched the meaning of "levy" and the meanings of terms associated with the term "levy".  When you finish reading this chapter, you will know this also.

Internal Revenue Manual  (01-19-1999)
Notice of Levy vs. Seizure

   1. There is no legal distinction between levy and seizure.

West's Encyclopedia of American Law

To assess; raise; execute; exact; tax; collect; gather; take up; seize. Thus, to levy a tax; to levy a nuisance; to levy a fine; to levy war; to levy an execution, i.e., to levy or collect a sum of money on an execution.

A seizure. The obtaining of money by legal process through seizure and sale of property; the raising of the money for which an execution has been issued.

A sheriff or other officer of the law can be ordered by a court to make a levy against any property not entitled to an exemption. The court can do this with an order of attachment, by which the court takes custody of the property during pending litigation, or by execution, the process used to enforce a judgment. The order directs the sheriff to take and safely keep all non-exempt property of the defendant found within the county or as much property as is necessary to satisfy the plaintiff's demand plus costs and expenses. The order also directs the sheriff to make a written statement of efforts and to return it to the clerk of the court where the action is pending. This report, called a return, lists all the property seized and the date of seizure.

The sheriff's act in taking custody of the defendant's property is the levy. A levy on real property is generally accomplished by giving the defendant and the general public notice that the defendant's property has been encumbered by the court order. This can be done by filing a notice with the clerk who keeps real estate mortgages and deeds recorded with the county. A levy of tangible personal property usually requires actual seizure. If the goods are capable of being moved around, most states insist that the sheriff actually take them into custody or remove them to another place for safekeeping with an independent person. If the property is bulky or cumbersome and removal would be impracticable and expensive, actual seizure is not necessary. The levy can be accomplished by removing an essential piece, such as the pinsetter in a bowling alley, or by services of the court demanding preservation of the property. The order can be served on the defendant or anyone else in possession of the property, and disobedience of it then can be punished as a contempt of court.

Often the order will permit levy against any property belonging to the defendant, but it will specify seizure of a unique item and allow something else of comparable value to be substituted only if the unusual item cannot be found.

An attempt to attach a debtor's property is effective only after a levy, and from that time on there is a lien on the attached property. This gives the plaintiff some security that he or she will be able to collect what is owed and, if first in time, establishes the plaintiff's priority at the head of the line of the defendant's creditors who might subsequently seek a levy upon a debtor's property. It can strengthen the plaintiff's bargaining position if the plaintiff is trying to settle the dispute with the defendant, and it may even create jurisdiction for the court over the defendant, but only to the extent of the value of the property subject to levy.

"levy." West's Encyclopedia of American Law. The Gale Group, Inc, 1998. 06 Nov. 2006.

        The important points from above are:

  • The sheriff's act in taking custody of the defendant's property is the levy.
  • The sheriff's takes custody of property in response to a court order.
  • This court order can be an order of attachment, by which the court takes custody of the property until litigation is finished.
  • This court order can also be a (writ of) execution enforcing a judgment.
  • A levy of tangible personal property requires actual legal seizure.
  • An actual legal seizure is the court ordered taking of the property into custody of a sheriff or other law enforcement officer.
  • An attachment is a lien AFTER levy.

Rule 69. Execution
(a) In General. Process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise.  The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held, existing at the time the remedy is sought, except that any statute of the United States governs to the extent that it is applicable.

West's Encyclopedia of American Law
Writ of Execution

A routine court order by which the court attempts to enforce the judgment that has been granted a plaintiff by authorizing a sheriff to levy on the property belonging to the judgment debtor, which is located within the county.

"writ of execution." Law Dictionary. Barron's Educational Series, Inc, 2003. 06 Nov. 2006.

West's Encyclopedia of American Law

The process whereby an official, usually a sheriff, is directed by an appropriate judicial writ to seize and sell as much of a debtor's nonexempt property as is necessary to satisfy a court's monetary judgment.

With regard to seizures of property, executions are authorized in any action or proceeding in which a monetary judgment is recoverable and in any other action or proceeding when authorized by statute. For example, the victim of a motor vehicle accident may institute a civil lawsuit seeking damages from another party. If the plaintiff wins the lawsuit and is awarded money from the defendant as a part of the verdict, the court may authorize an execution process to pay the debt to the plaintiff.

Ordinarily, execution is achieved through a legal device known as a writ of execution. The writ serves as proof of the property owed by the defendant, who is called the judgment debtor, to the plaintiff, or judgment creditor. The writ of execution commands an officer of the court, usually a sheriff, to take the property of the debtor to satisfy the debt. Ordinarily, a writ of execution cannot be issued until after an appropriate court issues a judgment or decree determining the rights and liabilities of the parties involved.

Any type of personal property is subject to seizure under an execution, provided existing laws do not prescribe specific exemptions. Such property may include jewelry, money, and stocks. In most states, real property, including land, is also subject to execution. Intellectual property, which includes patents, copyrights, and trademarks, is generally immune to execution.

An execution on a judgment is typically issued by the clerk of the court in which the judgment was rendered. The clerk cannot issue an execution unless directed to do so by the judgment creditor or the judgment creditor's attorney. The time within which an execution must issue varies from one jurisdiction to another. The writ must be delivered to the sheriff or his or her deputy before it can properly be said that the writ has been issued.

The levy of the execution is the act by which the officer of the court appropriates the judgment debtor's property to satisfy the command of the writ. The levy must be made by an officer duly qualified to act under the terms of the writ. In most states, the judgment debtor has the right to select and indicate to the officer the property upon which the levy is to be made.

An execution creates a lien that gives the judgment creditor qualified control of the judgment debtor's property. In most jurisdictions, an execution lien binds all property, personal or real, that is subject to levy. It is sometimes called a general lien because it attaches to all the defendant's property.

After the sheriff has levied, it is her or his duty to sell the property seized. An execution sale is a sale of property by a sheriff as an officer acting under the writ of execution. An execution sale should be conducted so as to promote competition and obtain the best price. If necessary, the sheriff can employ an auctioneer as an agent to sell the property, in order to procure the most favorable price and to collect the proceeds.

"levy." West's Encyclopedia of American Law. The Gale Group, Inc, 1998. 06 Nov. 2006.

  • A writ of execution is a court order for the sheriff to levy (seize property by law).
  • A writ of execution, and the execution ordered FOLLOW a judgment.
  • The levy must be made by an officer duly qualified to act under the terms of the writ.
  • An execution creates a lien that binds property subject to levy.

Barron's Educational Series, Inc.

1. writ authorizing seizure of property after a court approved judgment in favor of a creditor. After the court adjudicates its claim, the creditor must obtain a property execution authorizing garnishment of wages or seizure of personal assets, such as bank accounts, in a jurisdiction where the borrower resides, usually a municipality or county.

"attachment." Dictionary of Banking Terms. Barron's Educational Series, Inc, 2006. 06 Nov. 2006.

Barron's Educational Series, Inc.

Legal seizure of property to force payment of a debt.
Example: The landlord obtained an attachment that created a Lien on the tenant's property to enforce payment of back rent.

"attachment." Dictionary of Real Estate Terms. Barron's Educational Series, Inc, 2004. 06 Nov. 2006.

West's Encyclopedia of American Law

The legal process of seizing property to ensure satisfaction of a judgment.

The document by which a court orders such a seizure may be called a writ of attachment or an order of attachment.

Originally, the main purpose of attachment was to coerce a defendant into appearing in court and answering the plaintiff's claim. The court's order pressured the sheriff to take the defendant's property into custody, depriving the individual of the right to use or sell it. If the defendant obstinately refused to appear, the property could be sold by the court to pay off any monetary judgment entered against him or her. Today, the process of attachment has two functions, as a jurisdictional predicate and as a provisional remedy.

Attachment of property within reach of the court's jurisdiction gives the court authority over the defendant to the extent of that property's value even if the court cannot reach the defendant personally. For example, a court must have some connection with the defendant in order to require that person to appear and defend himself or herself in an action before that court.

A variety of different facts are sufficient to give the court jurisdiction over the defendant's person; for example, the defendant's residence within the state, the defendant's commission of a wrongful act within the state, or the defendant's doing business within the state.

If none of these kinds of facts exist to give the court jurisdiction over the defendant's person, the court may nevertheless assert its authority over property that the defendant owns within the state. In such a case, the plaintiff cannot recover a monetary judgment for an amount larger than the value of the property nor can the individual reach the defendant's property outside the state, but this sort of jurisdiction, called jurisdiction in rem or quasi in rem, may be the best the plaintiff can get. Before the court can exercise jurisdiction over the property, the plaintiff must obtain a writ of attachment to bring it into custody of the court.

Attachment may also be a provisional remedy, that is, relief that temporarily offers the plaintiff some security while pursuing a final judgment in the lawsuit. For example, a plaintiff who has good reason to believe that the person he or she is suing is about to pack up and leave the state will want the court to prevent this until the plaintiff has a chance to win the action and collect on the judgment. The plaintiff can apply for an order of attachment that brings the property into the custody of the court and takes away the defendant's right to remove it or dispose of it.

Attachment is considered a very harsh remedy because it substantially interferes with the defendant's property rights before final resolution of the overall dispute. For this reason, there have been a number of challenges to the attachment procedures in different states, and the Supreme Court has established standards that are the least that due process requires. For example, for centuries attachment of a defendant's property was granted ex parte, that is, without first allowing the defendant to argue against it. The theory was that any defendant was likely to leave the state if he or she knew beforehand that his or her property was about to be attached. This collides with the individual's right to be free of interference with his or her rights unless the individual is given notice and an opportunity to be heard in the matter. States, therefore, now generally provide that notice must be given to the defendant before the seizure of property whenever practical, and the defendant must be given a hearing promptly after the seizure. Furthermore, a court cannot sanction a seizure that is made without a court order of attachment. To obtain the order, the plaintiff must swear to a set of facts that justify such a drastic interference with the defendant's property.

The process of attachment varies in detail from state to state, but it is not overly complicated. The plaintiff submits an application to the court describing the cause of action against the defendant and the grounds for seeking an attachment. The plaintiff may have to include documents or other evidence to support the claim that he or she will probably win the lawsuit, and the individual usually is required to make the application under oath. States generally require that the plaintiff post a bond or undertaking in an amount sufficient to secure payment of damages to the defendant if it turns out that the plaintiff was not in fact entitled to the attachment.

The court issues a writ of attachment directing the sheriff or other law enforcement officer to serve a copy of the order on the defendant and to seize property equal in value to the sum specified in the writ. This is called a levy of attachment. The defendant then has a right to challenge the seizure or to post bond for the release of the property, in effect substituting the bond for the property in the court's custody. The order of attachment is effective only for a limited period, the time necessary to wind up the lawsuit between plaintiff and defendant or a specified period intended to permit resolution of the controversy. Provisions are usually made for special circumstances or extreme hardship.

Not every kind of property owned by the defendant is subject to attachment. The laws of a state may provide exemptions for certain household items, clothing, tools, and other essentials. The defendant's salary may be subject to attachment, but a certain amount is exempt in order to allow for personal support or for family support. Property belonging to the defendant but in the hands of someone else, such as salary owed or a debt not yet paid, may also be seized, but this procedure is usually called garnishment rather than attachment.

Courts always have the discretion to exempt more property than that specified in a statute or to deny the attachment altogether under the proper circumstances. This may be done, for example, when the court believes that the property sought to be attached is worth much more than any judgment the plaintiff could hope to win, or where the property is an ongoing business that would be destroyed by attachment.

"attachment." West's Encyclopedia of American Law. The Gale Group, Inc, 1998. 06 Nov. 2006.

        The above excerpts give an excellent overview of the entire process of property taking by levy.  On the next page, we will examine a Supreme Court case that speaks to the issue of levy procedures in the due course of adjudicating the issues before the court.

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